NUMBER 13-14-00517-CR 

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

FREDERICK O’NEAL SCOTT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court

of DeWitt County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Frederick O’Neal Scott was indicted for the offense of injury to a child, a 

third-degree felony enhanced to a second-degree felony by appellant’s prior felony 

conviction. See TEX. PENAL CODE ANN. §§ 12.42, 22.04 (West, Westlaw through 2015 

R.S.). Appellant pleaded not guilty and asserted the justification defense of reasonable 
2

parental discipline. See id. § 9.61 (West, Westlaw through 2015 R.S.). The jury found 

appellant guilty, and the trial court assessed punishment of twelve years’ imprisonment. 

By one issue, appellant argues the trial court abused its discretion by sustaining the 

State’s objection to evidence of the complainant’s school disciplinary records. We affirm.

I. BACKGROUND1

Appellant resided with his girlfriend, her eight-year-old daughter A.R.,

2 and A.R.’s 

two siblings. A.R. attended Noah’s Ark Child Development Center (Noah’s Ark) in 

Cuero, Texas, during the summer of 2013. Angie Miller, director for Noah’s Ark, testified 

she observed dark bruises on A.R.’s legs, back, and buttocks. Miller took photographs 

of the injuries, which were admitted at trial. She also contacted the Texas Department 

of Family and Protective Services (TDFPS) to report the injuries.

Later that day, A.R.’s mother and appellant picked up A.R. from Noah’s Ark. 

Lauren Morton, a Noah’s Ark employee, observed appellant drive down the road a short 

distance before stopping the car. Appellant then exited the vehicle and began striking 

A.R. with a belt while she was in the backseat. 

Appellant testified that he spanked A.R. with a belt because she injured her sister, 

drawing blood. He also admitted to spanking A.R. with a belt the next day because she 

told TDFPS about the previous spanking. 

 

1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons 

for it. See TEX. R. APP. P.47.4.

2 We refer to the minor victim by her initials to protect her privacy. 
3

The jury was instructed concerning appellant’s justification defense of reasonable 

parental discipline. See id. Outside the presence of the jury, the trial court held a 

hearing to address the admissibility of testimony concerning prior incidents of misconduct 

by A.R. at school, which appellant asserted were relevant to his justification defense. 

The State objected, arguing that the incidents were too removed in time, prejudicial, and 

irrelevant. The trial court sustained the State’s objection under Texas Rule of Evidence 

403. See TEX. R. EVID. 403. 

The jury returned a guilty verdict. This appeal followed.

II. EVIDENTIARY RULING

Appellant argues that “[t]he trial court erred in excluding appellant’s evidence of 

the alleged victim’s school behavior and such evidence was critical to the heart of 

appellant’s trial defense denying him due process.” 

A. Standard of Review

A trial judge has great discretion in the admission of evidence at trial. Druery v. 

State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 

372, 378–79 (Tex. Crim. App. 1990) (op. on reh'g). Therefore, we review the trial court's 

decision to admit or exclude evidence under an abuse-of-discretion standard. Davis v. 

State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010); Martinez v. State, 327 S.W.3d 727, 

736 (Tex. Crim. App. 2010). This includes complaints that the exclusion of evidence 

infringed upon the defendant's constitutional right to a meaningful opportunity to present 

a defense. See Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). Under an 

abuse-of-discretion standard, we do not disturb the trial court's decision if the ruling was 
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within the zone of reasonable disagreement. Davis, 329 S.W.3d at 803; Bigon v. State, 

252 S.W.3d 360, 367 (Tex. Crim. App. 2008); see Montgomery, 810 S.W.2d at 378–79. 

We will uphold an evidentiary ruling on appeal if it is correct on any theory of law that finds 

support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).

B. Applicable Law

1. Justification Defense

Section 9.61 of the Texas Penal Code provides as follows:

(a) The use of force, but not deadly force, against a child younger than 18 

years is justified:

(1) if the actor is the child's parent or stepparent or is acting in 

loco parentis to the child; and

(2) when and to the degree the actor reasonably believes the 

force is necessary to discipline the child or to safeguard or 

promote his welfare.

(b) For purposes of this section, “in loco parentis” includes grandparent and 

guardian, any person acting by, through, or under the direction of a court 

with jurisdiction over the child, and anyone who has express or implied 

consent of the parent or parents.

TEX. PENAL CODE ANN. § 9.61.

2. Prior Bad Acts

Character evidence is ordinarily inadmissible. TEX. R. EVID. 404(a). However, a

defendant is permitted to introduce evidence of a pertinent character trait of the alleged 

victim of the offense on trial. Id. R. 404(a)(3)(A). Such evidence, however, may only 

take the form of reputation or opinion testimony. Martinez v. State, 17 S.W.3d 677, 687 

(Tex. Crim. App. 2000) (citing TEX. R. EVID. 405(a)). 
5

Here, appellant sought to introduce specific instances of A.R.’s prior conduct. 

Rule 404(b) provides for the admissibility of specific bad acts only to the extent that they 

are relevant for a purpose other than to show character conformity.

3 James v. State, 335 

S.W.3d 719, 728 (Tex. App.—Fort Worth 2011, no pet.). “[T]hat is, the other purpose for 

which the party proffers the evidence must ‘tend to make the existence of any fact that is 

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.’” Mozon v. State, 991 S.W.2d 841, 846 n. 5 (Tex. Crim. 

App. 1999) (quoting Rankin v. State, 974 S.W.2d 707, 719–20 (Tex. Crim. App. 1998) 

(op. on reh'g)); TEX. R. EVID. 401. 

Even if evidence is admissible under Rule 404(b), it may be inadmissible under 

Rule 403 if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or 

needless presentation of cumulative evidence. Casey v. State, 215 S.W.3d 870, 879

(Tex. Crim. App. 2007); see TEX. R. EVID. 403. Rule 403 favors the admission of relevant 

evidence and carries a presumption that relevant evidence is more probative than 

prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Unfair

prejudice does not mean simply that the evidence injures the opponent's case. Rogers 

v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue 

tendency to suggest decision on an improper basis, commonly, though not necessarily, 

 

3 Texas Rule of Evidence 405(b) also permits evidence of specific acts as character evidence when 

the “person’s character or character trait is an essential element of a charge, claim or defense.” TEX. R.

EVID. 405(b). However, a child’s character is not an essential element when a defendant seeks to justify 

his conduct under Texas Penal Code section 9.61. Davis v. State, 104 S.W.3d 177, 181 (Tex. App.—

Waco 2003, no pet.) (citing TEX. PENAL CODE ANN. § 9.61 (West, Westlaw through 2015 R.S.)).
6

an emotional one.’” Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App.

1993)). 

The Rule 403 balancing factors include, but are not limited to, the following: (1) 

the probative value of the evidence; (2) the potential to impress the jury in some irrational, 

yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's 

need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App.

2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The trial court is 

presumed to have engaged in the required balancing test under Rule 403 once a party 

objects on the ground of Rule 403 and the trial court rules on the objection, unless the 

record indicates otherwise. See Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim.

App. 1997). The party opposing admission of the evidence bears the burden to 

demonstrate that the danger of unfair prejudice substantially outweighs the probative 

value. See Kappel v. State, 402 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2013, 

no pet.).

C. Error Analysis

Appellant sought to introduce evidence of specific instances of A.R.’s conduct 

while at school. The incidents in question occurred between September 17, 2012 and 

February 21, 2013. Appellant offered the incidents to show appellant’s state of mind on 

August 19, 2013, to support his defense that he was justified in using reasonable 

discipline. Appellant testified that he used a belt to spank A.R. on that date because she 

“injured” her sister. 
7

Assuming arguendo that the evidence of A.R.’s prior school misconduct was

admissible to show appellant’s state of mind, we conclude that the trial court did not abuse 

its discretion in determining that the probative value of such evidence was substantially 

outweighed by the danger of unfair prejudice.

4

 See TEX. R. EVID. 403; Casey, 215 

S.W.3d at 879.

1. Probative Value 

The disciplinary incidents occurred at school—not in the home—and were remote 

in time—between six and eleven months removed from the August 19, 2013 incident. 

Furthermore, appellant did not testify that he was using progressive discipline for prior 

similar incidents of misbehavior. Rather, appellant testified that he typically used “harsh” 

spankings for the type of misconduct at issue. Appellant explained that “it’s supposed to 

be a light punishment, then we’re talking about a light spanking. You do something 

mediocre and it’s a mediocre spanking. You do something severe like injure someone

. . . then it’s going to be harsh.” Further, appellant testified that, while he disciplined A.R. 

on the date in question, the photographs of A.R.’s injuries admitted at trial did not depict 

A.R., but rather some other unidentified person. Appellant testified that his physical 

discipline of A.R. did not result in the severe bruising seen in the photographs.

Given the remoteness of the school disciplinary issues, the lack of any evidence 

connecting A.R.’s prior school misconduct to the August 19, 2013 incident, and 

 

4

In support of his argument on appeal, appellant relies on Davis. See 104 S.W.3d 177. In Davis, 

the Waco Court of Appeals concluded that a child victim’s school disciplinary records were admissible under 

Rule 404(b) to show the defendant’s state of mind in punishing the child victim on the occasion in question. 

Id. at 182 (citing TEX. R. EVID. 404(b)). Because we conclude that the trial court’s ruling under Rule 403 

was not an abuse of discretion, appellant’s reliance on Davis is inapposite. See TEX. R. EVID. 403. 
8

appellant’s testimony concerning discipline, we conclude that the proffered evidence had 

little probative value. This factor weighs strongly in favor of excluding the evidence.

2. Potential to Impress Jury in Irrational Way

The excluded evidence includes references to A.R. having engaged in defiant, 

disruptive, and violent behavior over a course of five months during the school year. 

Such behavior included: throwing a chair; stabbing a classmate with a pencil; pinching 

another student; crying and screaming; and generally being disruptive in the classroom. 

For the reasons discussed above, the evidence has very little probative value, and, given 

the severity of the misconduct, the evidence would likely have improperly focused the 

jury’s attention on A.R.’s character, which was not a fact of consequence in the case. 

This factor weighs in favor of exclusion.

3. The Time Needed to Develop the Evidence

Appellant testified outside of the presence of the jury regarding A.R.’s school 

misconduct. Appellant’s testimony concerning the incident covered twelve pages of a 

two volume reporter’s record. This factor weighs in favor of admissibility. 

4. Appellant’s Need for the Evidence

In addressing this factor, we consider the following: “Does the proponent have 

other available evidence to establish the fact of consequence that the [evidence] is 

relevant to show? If so, how strong is that other evidence? And is the fact of 

consequence related to an issue that is in dispute?” Erazo v. State, 144 S.W.3d 487, 

495–96 (Tex. Crim. App. 2004) (citing Montgomery, 810 S.W.2d at 390). 
9

The excluded evidence was offered to show appellant’s state of mind in support of 

his defense that he was using reasonable discipline. This was a fact of consequence 

related to a disputed issue in the case. However, appellant was able to offer other 

evidence regarding this issue. Appellant testified generally regarding A.R.’s behavior in 

the home and the reason why he “spanked” A.R. on August 19, 2013. Appellant also 

testified extensively regarding his discipline methods. While it is difficult to assess the

relative strength of this evidence, we conclude that the available evidence was clearly 

more probative of the disputed issue than A.R.’s remote school discipline issues. This 

factor weighs in favor of excluding the evidence.

5. Summary

In considering the relevant factors, we conclude that the minimal probative value 

of A.R.’s school misconduct is substantially outweighed by the danger of unfair prejudice. 

See TEX. R. EVID. 403; Hernandez, 390 S.W.3d at 324. Therefore, the trial court did not 

abuse its discretion in excluding the evidence. See Davis, 329 S.W.3d at 803. 

D. Harm Analysis

Even if the trial court’s ruling could be considered an abuse of discretion, the 

exclusion of evidence pertaining to A.R.’s prior school misconduct would constitute

harmless error. Generally, errors resulting from the admission or exclusion of evidence 

are nonconstitutional. See Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App.

2007). However, if the precluded evidence forms a vital portion of the defendant's case, 

the error may be of constitutional magnitude. Id.; Potier v. State, 68 S.W.3d 657, 665 

(Tex. Crim. App. 2002).
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Appellant testified at length concerning his discipline methods, including his reason 

for disciplining A.R. on August 19, 2013. Although the excluded testimony in this case 

related to a defensive theory, appellant was not precluded from presenting the substance 

of his defense to the jury. Therefore, we evaluate harm based on the standard applied 

for nonconstitutional error.

Nonconstitutional error which does not affect an accused's substantial rights is 

harmless and must be disregarded. TEX. R. APP. P. 44.2(b). Substantial rights are not 

affected if, based on the record as a whole, we have a fair assurance that the erroneous 

exclusion of evidence had either no influence or only a slight influence on the jury. Motilla 

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In making our assessment, we 

consider everything in the record, the nature of the evidence supporting the verdict, the 

character of the alleged error, and how it relates to other evidence in the record. Id.

Appellant admitted to using “harsh” spankings for “severe” acts like injuring 

someone. This is consistent with appellant’s reasoning for “spanking” A.R. on August 

19, 2013, which resulted in extensive bruising to A.R.’s back, buttocks and legs. 

Appellant was also able to testify generally as to A.R.’s behavior in the home, including 

his claims that A.R. injured her sister, used profanity, marked on the walls, dug through 

the trash, ate candy off the floor, and was defiant. Given the passage of time between 

the school disciplinary issues and the August, 19, 2013 incident, and considering that the 

jury was plainly informed of A.R.’s misbehavior in the home, we conclude that the 

exclusion of A.R.’s school misconduct did not affect appellant’s substantial rights. See
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TEX. R. APP. P. 44.2(b); Davis v. State, 104 S.W.3d 177, 183–84 (Tex. App.—Waco 2003, 

no pet.).

We overrule appellant’s sole issue. 

III. CONCLUSION

We affirm the judgment of the trial court.

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

21st day of July, 2016.